“Public prosecutors will never bring cases against the government’s side since they answer to the government. They will not bring cases against opponent armed groups either because these groups operate far-away [outside of the justice system], and when they do set foot in Juba they do so under some political arrangement protecting them from prosecutorial action.”
This is how a South Sudanese lawyer described the justice system during Amnesty International’s research mission to the country earlier this year. He is yet to be contradicted.
There is at present no prospect for justice before the courts of South Sudan for crimes committed during the particularly brutal conflict that started with fighting between government and opposition armed groups in December 2013. Thousands of people have been killed and raped by both government and opposition forces, and millions have been forcibly displaced causing a tragic humanitarian disaster and the largest refugee crisis on the continent.
With apparent cynicism, authorities have made sure that no matter which forces commit crimes, victims have nowhere to seek justice and reparations.
No high-ranking alleged perpetrators have been charged. On the contrary, the country’s leaders are doing everything to prevent justice and accountability for these crimes. With apparent cynicism, authorities have made sure that no matter which forces commit crimes, victims have nowhere to seek justice and reparations.
The President and his closest allies control the country’s ordinary courts. They nominate prosecutors who obey executive orders and – contrary to South Sudanese laws – do not initiate investigations into human rights violations without a complainant. Judges perceived to act against the government’s interests are sometimes fired, while the National Security Service (NSS) maintains an atmosphere of fear through surveillance.
Military courts are also not a viable avenue for accountability. Firstly, under South Sudanese law they do not have jurisdiction over crimes committed by soldiers against civilians, although this was blatantly disregarded on Presidential orders in the Terrain case. This sole prosecution relating to crimes committed in the conflict resulted in 10 low-ranking soldiers being convicted of raping and sexually assaulting foreign aid workers and murdering a South Sudanese journalist, proceedings which raised several concerns about the fairness of the trial. Secondly, military courts also lack independence because their decisions must be confirmed or rejected by the Commander-in-Chief, the President; a legal requirement which, ironically is duly respected.
When certain events were too important to deny or too serious to ignore, the President set up ad hoc investigative committees, whose the findings are rarely made public, and have not resulted in prosecutions.
On several occasions, possibly when certain events were too important to deny or too serious to ignore, the President set up ad hoc investigative committees. He did this in response to the December 2013 clash between government and opposition forces in Juba, the February 2016 attack on a UN camp protecting internally displaced people in Malakal, and the November 2018 spike in sexual assaults in Bentiu. However, the findings of such committees are rarely made public, and have not resulted in prosecutions for crimes committed against South Sudanese people.
Given the lack of political will for accountability, and the control exercised by the President over justice systems, how will victims get justice in their own country? Both government and opposition leaders turn a deaf ear to demands for justice. The two warring leaders made this clear in a joint opinion piece published in the New York Times in June 2016 titled South Sudan needs truth, not trials.
Sadly, this means that, in the short-term, any hopes for justice must be redirected outside of South Sudan.
This sadly means that, in the short-term any hopes for justice must be redirected outside of South Sudan. The 2015 peace agreement and its 2018 revitalized version provide for the creation of a Hybrid Court for South Sudan established jointly by the South Sudanese government and the African Union. This would have been an ‘internationalized’ tribunal comprising judges from South Sudan and other African countries, with the mandate to prosecute individuals responsible for crimes against humanity, war crimes and other crimes under international law or South Sudanese law -- but it is yet to be set up.
In April 2019, when millions of South Sudanese people faced severe food shortages, the government blamed international donors for not “pay[ing] their money” for implementation of the peace deal, yet shamelessly contracted a US-based lobby firm for US$3.7 million to, amongst other things, delay and ultimately block the establishment of the hybrid court.
The South Sudanese government leaves the African Union, neighbouring states and other actors at the international level no other choice than to step up justice avenues outside of the country for victims of the conflict.
This is a government that spends money to breach the peace agreement and blames other states for not giving them enough money to implement the very agreement. This is a government that ignores its starving people and spends big money to deny them justice. The South Sudanese government leaves the African Union, neighbouring states and other actors at the international level no other choice than to step up justice avenues outside of the country for victims of the conflict. Justice for South Sudanese people will be a long, difficult road, but history teaches us that justice can catch up with those trying to outrun it.
Alice Banens, is a legal advisor at Amnesty International and co-author of Amnesty International’s new report ‘Do you think we will prosecute ourselves?’: No prospects for accountability in South Sudan.
This OpEd was first published in the weekly newspaper, The EastAfrican.
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